The Blog of the Butte County Farm Bureau. Shoveling important information to your farms and ranches.

Standing Up for Duarte Nursery

On Aug 11, 2017, the Butte County Farm Bureau introduced a challenge to all California County Farm Bureau’s and all State and County Farm Bureau’s in the US to make a donation to the Duarte Legal fund of $10 per agriculture member of each County Farm Bureau.

Butte County Farm Bureau President Clark Becker said, “John Duarte has put his family’s entire livelihood at risk to fight for you – America’s Farmers and Ranchers. He will soon have the opportunity to appeal the judges ruling and it is our turn to support him and stand up to protect our farms.”

What is the issue?
The United States government is prosecuting California farmer John Duarte and Duarte Nursery, Inc. of Hughson California under the Clean Water Act for planting wheat in a wheat field in Tehama County, California. The wetlands in question had been farmed to wheat many times prior, were farmed in the same manner as many hundreds of thousands of other acreages, and are still fully functioning as wetlands.

Plowing is legal under the Clean Water Act, but so far the United States government has successfully argued that plowing is only legal if it does not move soil. The Duarte’s, like other farmers, have yet to understand how plowing can be done without moving soil. If this unprecedented prosecution succeeds, it threatens nearly every farm in the United States.

Who are the Duarte’s?
The Duarte Family is a multigenerational farming family in California. Their main business is Duarte Nursery, Inc. in Hughson, CA, which annually employs up to 700 people and serves over 1,500 farm customers with nursery trees and vines.

What did they do to trigger this prosecution?
In 2012 the Duarte’s planted winter wheat on the property. Wheat plantings and the shallow tillage involved have never triggered regulation, nor required permitting prior to this case. The prosecution got started when a federal bureaucrat confused the shallow 4-6 inch tillage operation with 3-4 feet deep ripping for vineyard or orchard preparation.

In February of 2013 the Duarte’s received a letter from the federal government ordering them to cease and desist all work on the property. The Duartes requested a hearing to establish facts. They were not granted a hearing. Through the Pacific Legal Foundation, the Duartes sued for a Constitutional violation of their Fifth Amendment right to due process. There is direct evidence that this destruction of wetlands suit is in retaliation for the Duartes civil rights action against the government.

What are the penalties being sought?
$2.8M in direct penalty, loss of use of their land, and $20-$30 million in additional mitigation paid to a private third-party organization. These penalties are not based on environmental harm, but rather on the government’s assessment of how much it can squeeze from the Duartes. No farmer or investor in farming could afford these kinds of penalties for a mere wheat crop.

What wetlands are jurisdictional under the CWA?
The Clean Water Act regulates “navigable water of the United States … ” Courts and agencies have greatly expanded what most would consider navigable waters, to include large areas of property that are bone-dry most of the year, except for when they pool small amounts of water in the wet season.

This prosecution is brought under the rules that existed before the Obama Administration promulgated the new rule in 2015- the “WOTUS Rule”- expanding the Clean Water Act. That WOTUS Rule has been stayed by the federal courts, and the Trump Administration has formally proposed the new rule’s repeal. In other words, Duarte is being prosecuted under the definition of “navigable waters” that existed before the Obama Administration’s rule, and which would exist if the Trump Administration is successful in repealing that new rule.

Aren’t farming practices excluded from CWA enforcement?
Yes. Originally very broadly. Federal agencies are attempting to greatly narrow the original intent to include only lands that are continuously farmed to the same or similar crops, and then only if that farming does not involve moving soil. This is unworkable for farmers who must plow their land to plant crops, and adapt to markets. Wheat prices were very low for decades until the global food shortages that occurred between 2009 and 2013. We can recall tortilla riots in Mexico City, the Arab Spring and high food inflation with low wage growth during this period. This narrow interpretation is not only unworkable for farmer; it also threatens national food security and is anti-human.

What are the civil rights issues?
The case started with a Fifth Amendment Due Process claim that asserted that the Duartes had a right to an impartial hearing before they could be deprived of their right to farm their land.

The destruction of wetlands counterclaim was justified by a Federal attorney with the statement, “They’re suing us so we are suing them back.” This is a First Amendment free speech violation against the Duartes.

The Eighth Amendment is usually noted for protection against cruel and unusual punishment yet also protects us from ruinous fines. The prosecution’s stated penalties in this case are clearly aimed at being ruinous.

What has the Judge ruled so far?
That Duartes shallow tillage violated the Clean Water Act, and that the federal government is immune from suit even when it violates constitutional rights.

This doesn’t sound right. Is there more to the story?
No. It really is just a wheat field with 4-7 inch tillage. Field tours are available.

Activities
The Duarte Nursery, Inc legal and lobbying teams are in full operation. In California, the legal team is preparing for trial, which begins August 15, 2017. This will be a $500k effort alone.

In Washington DC, the Duarte Nursery Inc. lobbying team is working to access multiple agencies in the Trump administration. This is an additional costly effort.

Partners
The Pacific Legal Foundation is prosecuting the Constitutional claims against the U.S. government.

The California Farm Bureau Federation has created the Duarte Defense Account, which has received over $100K in donations from Farm Bureaus and other agriculture advocacy groups nationwide. The Butte County Farm Bureau Challenge will ask for funds to be submitted to the California Farm Bureau Federation for collection and distribution.